OMAR v. BELLO (2004)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Loughlin, J.), dated July 23, 2003, which denied their motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The Supreme Court correctly determined that the defendants failed to make a prima facie showing that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   The affirmed medical report of the defendants' orthopedist indicated the existence of limitations in motion of the plaintiff Nestor Omar's lumbar spine.   The affirmed medical report of the defendants' neurologist indicated the existence of limitations in motion of the plaintiff Rina Garcia's cervical and lumbar spine.   Since the defendants failed to meet their initial burden of establishing a prima facie case, it is unnecessary “to consider whether the plaintiffs' papers in opposition to the defendants' motion were sufficient to raise a triable issue of fact” (see Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349;  see also Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437, 640 N.Y.S.2d 604).